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showing good cause therefor, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars; and may, upon like terms, allow an answer to be made after the time limited by this act: and may, upon such terms as may be just, and upon payment of costs, relieve a party or his legal representatives from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. When, from any cause, the summons and a copy of the complaint in an action have not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representatives, at any time within six months after the rendition of any judgment in such action, to answer to the merits of the original action.
1. The court may on trial amend by adding or striking out parties. Acquital v. Crowell, i Cal. 191 ; Polk v. Coffin, 9 Cal. 56.
2. Great latitude is given to the courts by our statutes in amending and altering pleadings. Polock v. Hunt, 2 Cal. 193; Cooke v. Spears, ib. 409; Stearns v. Martin, 4 ib. 227; Smith v. Yreka Water Co., Cal. Oct. T. 1859.
3. The discovery of a fraud after suit brought, would entitle plaintiff so to shape his action as to include it. Truebody y. Jacobson, 2 Cal. 269.
4. An amendment should be allowed or directed to conform the pleadings to the facts which ought to be in issue, in order to enable the court to decree fully on the merits. Connalley v. Peck, 3 Cal. 75; Barth v. Walther, 4 Duer, 228.
5. A refusal to allow an amendment is presumed to be right, unless the character of the proposed amendment is shown in the records. Jessup v. King, 4 Cal. 331.
6. It is always within the power of a court, when exercising proper discretion, to extend the time fixed by law, whenever the ends of justice would seem to demand such an extension. Wood v. Fobes, 5 Cal. 62.
7. An action in assumpsit cannot be changed into an action in tort by amendment of complaint. Ramirez v. Murray, 5 ib. 222.
8. A defendant may at any time, within six months, come in and open a default, and answer to the merits of the action, if he has not been personally served with process. Guy v. Ide, 6 Cal. 99; Pico v. Carillo, 7 ib. 30; Shaw v. McGregor, 8 ib. 521 ; Ware v. Robinson, 9 ib. 107.
9. There must be sufficient grounds set forth in the affidavit, as mistake, surprise, or excusable neglect, to authorize the court to set aside the judgment hy default, after personal service. Harlan v. Smith, 6 ib. 173.
10. After a motion for a non-suit the court might allow an amendment of a declaration if it does not operate as a surprise upon the defendants. Farmer v. Cram, 7 ib. 135.
11. Ignorance of the law in not knowing that an answer must be filed in ten days, is not excusable neglect. Chase v. Swain, 9 ib. 130.
12. The plaintiff, in one count, in his complaint, claimed to recover possession of a draft wrongfully detained, and in another count claimed to recover possession of the money obtained on the draft. The evidence showed that the defendant as his agent came lawfully into possession of the money on the draft, which upon demand he failed to deliver : held, that this variance could not be amended, as there was a failure to prove the alleged causes of action in their entire scope and meaning. Walter v. Bennett, 16 New York, 250.
13. This section was intended mainly, if not solely, to allow amendments in order to sustain a judgment, not for the purpose of reversing it. Gasper v. Adams, 24 Barb. 287.
14. An amended pleading takes the place of and supersedes the original. Seneca Co. Bank v. Garlinghouse, 4 How. Pr. 174.
15. An order made by a judge at chambers, enlarging the time to answer, is an extension of the time to demur. Brodhead v. Brodhead, ib. 308.
16. Being allowed to come in and defend, does not of itself open the judgment, nor stay proceedings upon the execution. Carswell v. Neville, 12 ib. 445.
17. It is only when the purpose of the amendment is to conform the pleadings or proceedings to the facts proven, that the court is restricted from allowing an amendment which changes the nature of the claim or defense. Daguerre v. Orser, 3 Abbott, 86.
18. Leave will not be granted to file a supplemental complaint which alleges any fact known to the plaintiff at the time of commencing his action. McMahon v. Allen, ib. 89.
19. Under the authority in all cases to demur to the sufficiency of the answer, the defendant may in all cases amend his answer as of course. Townsend v. Platt, ib. 323.
20. The court has power to open a judgment by default in case of surprise or excusable neglect. Mann v. Provost, ib. 446.
21. The power of amendment, either before or after judgment, by adding or striking out names of the parties, is comprehensive, and includes almost all cases which can arise and call for the interposition of the court. Sherman v. Fream, 8 ib. 33.
69. When the plaintiff is ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name; and when his true name is discovered, the pleading or proceeding may be amended accordingly.
1. Morgan v. Thrift, 2 Cal. 562.
2. The name of the defendant cannot be changed after service, without notice. M'Nally v. Mott, 3 ib. 235 : Smith v. Curtis, 7 ib. 584.
3. If the name be altered, and the party afterwards appear and answer, the alteration will be held immaterial. Ib.
4. The summons was issued against John Doe, and returned served on John Doe alias Westfall; Westfall made no appearance or defense, which was equivalent to an admission that he was the party intended to be sued, and judgment by default was properly entered against him. Curtis v. Herrick, Cal. Oct. T. 1859.
5. It is not allowable for a plaintiff to use a fictitious name at his discretion, but only when he is ignorant of the true name. Crandall v. Beach, 7 How. Pr. 271.
70. In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.
71. The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect.
1. The error in an answer entitled in the "supreme " instead of the "superior" court, may be disregarded. Williams v. Sholto, 4 Sand. 641.
OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS.
ARREST AND BAIL.
72. No person shall be arrested in a civil action, except as prescribed by this act.
73. The defendant may be arrested as hereinafter prescribed, in the following cases arising after the passage of this act: (a)
(a) STATUTES OF 1850, 407; Wood's Digest, 252, Art. 1381. An act for the relief of persons imprisoned on civil process. Passed April 22, 1850.
1. Every person confined in jail, on an execution issued on a judgment rendered in a civil action, shall be discharged therefrom upon the conditions hereinafter specified.
2. Sach person shall cause a notice in writing to be given to the plaintiff, his agent, or attorney, that at a certain time and place he will apply to the judge of the district court of the county in which such person may be confined; or, in case of his absence, or 1st. In an action for the recovery of money or damages on a cause of action arising upon contract express or implied, when the defendant is about to depart from the state, with intent to defraud his creditors, or when the action is for willful injury to person, to character, or to property, knowing the property to belong to another.
2d. In an action for a fine or penalty, or for money or property embezzled, or fraudulently misapplied, or converted to his own use, by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for misconduct or neglect in office, or in a professional employment; or for a willful violation of duty.
3d. In an action to recover the possession of personal property, unjustly detained, when the property, or any part thereof, has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff.
inability to act, to the judge of the county court of the county in which such person may be imprisoned, for the purpose of obtaining a discharge from his imprisonment.
3. Such notice shall be served upon the plaintiff, his agent or attorney, one day at least before the hearing of the application, in cases where the plaintiff, his agent or attorney, lives within twenty miles of the place of hearing; and one day shall be added for every additional twenty miles that such person may reside from the place of hearing.
4. At the time and place specified in the notice, such person shall be taken before such judge, who shall examine him under oath concerning his estate, and property, and effects, and the disposal thereof, and his ability to pay the judgment for which he is committed ; and such judge shall also hear any other legal and pertinent evidence that may be produced by the debtor or the creditor.
5. The plaintiff in the action may, upon such examination, propose to the prisoner any interrogatories pertinent to the inquiry, and they shall, if required by him, be proposed and answered in writing; and the answer shall be signed and sworn to by the prisoner.
6. If, upon the examination, the judge shall be satisfied that the prisoner is entitled to his discharge, such judge shall administer to him the following oath, to wit: "I do solemnly swear that I have not any estate, real or personal, to the amount of fifty dollars, except such as is by law exempted from being taken in execution; and that I have not any other estate now conveyed or concealed, or in any way disposed of, with design to secure the same to my use, or to defraud my creditors, so help me God.”
7. After administering the oath, the judge shall issue an order that the prisoner be discharged from custody, if he be imprisoned for no other cause; and the officer, upon
4th. When the defendant has been guilty of fraud in contracting the debt, or incurring the obligation for which the action is brought; or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought.
5th. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors.
1. One partner cannot arrest another, suing to recover money. Soule v. Hayward, i Cal. 345; Cary v. Williams, 1 Duer, 667.
2. A party will be discharged from arrest where the process, though proper in form, has been issued in an improper case. Soule v. Hayward, 1 Cal. 345.
3. The representations, if false or fraudulent, must precede the contract. Snow v. Halstead, ib. 359.
4. In a suit to recover money received by a person as agent, he cannot be arrested without showing some fraudulent conduct on his part, or a demand on him by the principal, and a refusal on his part to pay. An arrest in such case is prohibited by section 15, art. I, of the constitution. Ex parte Holdforth, ib. 438.
the service of such order, shall discharge the prisoner forthwith, if he be imprisoned for no other cause.
8. If such judge should not discharge the prisoner, he may apply for his discharge at the end of every succeeding ten days, in the same manner as above provided, and the same proceedings shall thereupon be had.
9. The prisoner after being so discharged shall be forever exempted from arrest or imprisonment for the same debt, unless he shall be convicted of having willfully sworn falsely upon his examination before the judge, or in taking the oath before prescribed.
10. The judgment against any prisoner, who is discharged as aforesaid, shall remain in full force against any estate which may then, or at any time afterwards, belong to him; and the plaintiff may take out a new execution against the goods and estate of the prisoner in like manner as if he had never been committed.
11. The plaintiff in the action may at any time order the prisoner to be discharged and he shall not thereafter be liable to imprisonment for the same cause of action.
12. Whenever a person is committed to jail on an execution issued on a judgment recovered in a civil action, the creditor, his agent, or attorney, shall advance to the jailor, within twenty-four hours after such commitment, sufficient money to pay for the support of said prisoner during the time for which he may be imprisoned ; and in case the money should not be so advanced, or if, during the time the prisoner may be in confinement, the money should be expended in the support of such prisoner, and the creditor should neglect, for twenty-four hours, to advance such further sum as might be necessary for his support, the jailor shall forthwith discharge such prisoner from custody, and such discharge shall have the same effect as a discharge by order of the creditor.